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HQ 953591

June 3, 1993

CLA-2 CO:R:C:T 953591 jb


TARIFF NO.: 6108.31.0010

Beth C. Brotman, Esquire
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036

RE: women's dorm shirts; not pullovers; nightdresses, subheading 6108.31.0010, HTSUSA.

Dear Ms. Brotman:

This ruling is in response to your request, dated March 8, 1992, on behalf of your client, McCrory Stores, regarding classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for women's cotton dorm shirts.


The merchandise, style numbers 1192/DOM0496 and 1957/DOM0501, are representative of a series of similar garments. Style numbers 1192/DOM0496 and 1957/DOM0501 are identical except for the printed design featured on the front of each garment (a heart design and a sheep design, respectively).

The submitted garments are 100 percent cotton knit, oversized T-shirts, measuring approximately 38 inches in length and 26 inches across the chest. The garments feature a round, ribbed-knit neckline, dropped shoulders with loose fitting sleeves extending to slightly below the elbow, and a straight hemmed bottom edge. The garments are designed and sold as "One Size Fits All", and are imported from El Salvador.

Dorm shirts, essentially the same as the merchandise in question, were previously submitted by you for a ruling, and in HQ 951628, dated August 12, 1992, were classified in heading 6108, HTSUSA. Given the uniformity of the garments (i.e., construction and manner in which they are advertised, sold and used) you ask that HQ 951628 be applied retroactively to all identical garments, regardless of when they were entered.


Whether the sample merchandise is classifiable as women's pullovers and similar articles under chapter 6110, HTSUSA, or as women's nightdresses, in chapter 6108, HTSUSA?


Classification of merchandise under the HTSUSA, is in accordance with the General Rules of Interpretation (GRI). The GRI require that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI, the remaining GRI will be applied taken in order.

In classifying sleepwear, Customs follows court decisions and long standing classification practices in its interpretation of which garments are classifiable as sleepwear (or nightwear). In Mast Industries v. United States, 9 CIT 549, aff'd 786 F.2d 1144 (1986), the court stated that the definition of nightclothes was "garments worn to bed."

In addition, Customs Textile and Apparel Category Guidelines, 53 F.R. 52564, CIE 13/88 (1988), state that "nightwear" means sleepwear, so that garments worn to bed in the day time are included under that designation.

In St. Eve International, Inc. v. United States, 11 CIT 224 (1987), certain 100 percent cotton knit, nonconfining garments in a variety of colors, with prints covering the front of the garments were held to be classifiable as "nightwear" rather than as dresses, blouses, or shirts. Relying on United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F2.d 373 (CAFC) Cert. den., Carborundum Co. v. United States, 429 U.S. 979 (1976), in which the appeals court established criteria to be applied in determining the chief use of an imported article in the absence of special language or context, the court considered the following factors to be determinative:

1. general physical characteristics of the merchandise;

2. expectations of the ultimate purchasers;

3. channels, class or kind of trade in which the merchandise moves;

4. environment of the sale and the manner in which the merchandise is advertised and displayed;

5. use, if any, in the same manner as merchandise which defines the class;

6. the economic practicality of so using the import;

7. recognition in the trade of this use.

Applying these criteria, the court found that the merchandise was designed as sleepwear, in that it was comprised of lightweight 100 percent cotton knit, with a loose silhouette, flat seams, a large neck, few buttons and no zippers, gores or insets. Furthermore, it was established that the merchandise was manufactured and advertised in sales catalogues and in the fashion media as sleepwear and that it was sold mainly in the sleepwear departments of major retail stores throughout the country. It was also demonstrated that the garments were longer than most blouses and shirts; they would be too bulky to be tucked into a skirt or pants; many of the prints, because they were positioned from neck to hem, would be interrupted and lose their design value if belted or tucked into skirt or pants; and that the fabric was too sheer to be worn out of doors without undergarments.

In T.D. 87-118, HRL 084877, dated September 5, 1989, it was also decided that a woman's finely knit oversized pullover designated as "One Size Fits All", and featuring a round rib knit neck, 3/4 length hemmed sleeves, one breast pocket and a hemmed bottom with side slits extending to the mid-thigh, was classifiable as a "nightshirt". Stressing the same criteria used in St.Eve, it was concluded that although resembling a woman's oversized shirt, the garment was bought, sold and marketed as a sleepshirt.

Using similar reasoning, in regard to the classification of a woman's jacket as either an indoor coordinate jacket or an outdoor "coat", the court in Pollak Import Export Corp. v. United States, Slip Op. 92-12, 26 Cust. Bull. and Dec., No. 11, 7 (decided February 14, 1992), held that based on the general
physical characteristics of the jacket, the expectations of the ultimate purchasers, the channels of trade in which the jacket was displayed, and the use of the jacket, that this garment was chiefly used as a jacket and must be classified accordingly.

As was stated in HQ 951628, the documentary evidence which was made available to this office is as follows:

1. An affidavit from the buyer of ladies' lingerie for McCrory Stores stating that these garments are purchased by her and displayed in McCrory's stores as nightwear, rather than as outerwear. Moreover, to the best of her knowledge and belief, the said garments are purchased and worn by consumers as sleepwear. Five photographs which were appended to the affidavit illustrate the manner in which these garments are displayed and sold in McCrory's York, Pennsylvania store. Specifically, the photographs indicate that the said garments are sold in the "Intimate Apparel" section of the store along with sleepwear and underwear garments, rather than in the outerwear section of the store where shirts, pullovers and blouses are sold.

2. A "Sales Promotion Sheet" issued by McCrory's Sleepwear Department in October 1991, to its various stores, instructing them as follows: "Dorm shirts should be featured on special individual racks in the Sleepwear Department."

3. A copy of the hangtag which will be placed on these items, displaying a representation of the moon and referring to the garment as a "ladies' sleep and dorm shirt", clearly associating the garment with nighttime and sleep.

4. A copy of a page from McCrory Stores' Spring advertising circular depicting two "Dorm shirt" styles, likewise referring to them as "ladies' sleep shirts".

Based on the factors which were found to be determinative in both St. Eve and Pollak Import Export Corp., garments should be classified in accordance with the way in which they are advertised, sold and used. The supporting documents provided to this office, clearly indicate that the manner in which they are constructed, purchased, displayed, sold and used, identifies them as "nightwear".

As to their structure, the oversized cut of these garments evidences that they are designed and intended to be worn as nightwear. Features such as their loose fitting, large necklines and absence of any fasteners render them particularly well- suited for wear when sleeping. Moreover, the length and looseness of the bodies of these garments and the printed design extending over much of the front portion of the garment make them unsuitable for belting or tucking into pants or skirts, and thus, ill-suited for outerwear.

Furthermore, as indicated by the supporting documents, the garments are part of the class or kind of garments marketed as nightwear rather than as outerwear in that they are displayed and sold in the Intimate Apparel Department, along with flannel nightgowns, pajamas, baby dolls, etc. As is also evident from the hangtag and circular, these garments are advertised and sold as "sleepwear". It is also McCrory's understanding that the expectations of the consumers purchasing these garments are to utilize them for sleepwear.

In light of the fact that the advertisements are overwhelmingly consistent, in keeping with the criteria noted above, in addition to documents confirming the inquirer's claim and information concerning the channels of trade, the submitted articles clearly belong to the class of merchandise known as sleepwear, classifiable under heading 6108, HTSUSA, which provides for women's nightdresses.


The submitted garments, Style numbers 1192/DOM0496 and 1957/DOM0501, are classifiable under subheading 6108.31.0010, HTSUSA, which provides for women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: nightdresses and pajamas: of cotton, women's. The applicable rate of duty is 9 percent ad valorem, and the textile category is 351.

The foregoing decision should be applied to all unliquidated entries and open protests.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs Office. Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.


John Durant, Director

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